DECISION MODIFIED THE NOTICE SERVED AND PUBLISHED IN THE FEDERAL REGISTER ON SEPTEMBER 27, 2011 TO THE EXTENT NECESSARY: (1) TO IMPLEMENT INTERIM TRAIL USE/RAIL BANKING TO PERMIT THE CITY OF LAFAYETTE, COLO. TO NEGOTIATE WITH BNSF RAILWAY COMPANY FOR TRAIL USE FOR A PERIOD OF 180 DAYS FROM THE SERVICE DATE OF THIS DECISION AND NOTICE (UNTIL APRIL 23, 2012); AND (2) TO PERMIT PUBLIC USE NEGOTIATIONS FOR A PERIOD OF 180 DAYS COMMENCING FROM THE OCTOBER 27, 2011 EFFECTIVE DATE OF THE EXEMPTION (UNTIL APRIL 24, 2012).

1152 subpart F–Exempt
Abandonmentsto abandon 1.37 miles of rail line extending between
milepost 20.80 and milepost 22.17 at Lafayette, in Boulder County, Colo. Notice of the exemption was served and
published in the Federal Register on September 27, 2011 (76 Fed. Reg. 59,770).The
exemption is scheduled to become effective on October 27, 2011.

The Board’s
Office of Environmental Analysis (OEA) served an environmental assessment (EA)
in this proceeding on September 30, 2011, requesting comments by October 14,
2011.In the EA, OEA recommended that
the Board not impose environmental conditions on any decision granting
abandonment authority.No comments to
the EA were filed by the October 14, 2011 due date.Therefore, no condition will be imposed.Because no environmental or historic
preservation issues have been raised by any party or identified by OEA, a
Finding of No Significant Impact under 49 C.F.R. § 1105.10(g) will be made
pursuant to 49 C.F.R. § 1011.7(a)(2)(ix).

In the EA,
OEA states that the right-of-way may be suitable for other public use following
abandonment and salvage of the Line.On September
29, 2011, the City of Lafayette, Colo. (the City), filed a request for the
issuance of a notice of interim trail use (NITU) for the 1.37-mile line of
railroad to negotiate with BNSF for acquisition of the line for use as a trail
under the National Trails System Act, 16 U.S.C. § 1247(d)
(Trails Act), and 49 C.F.R. § 1152.29.The City has also submitted a statement of
willingness to assume full financial responsibility for the management of, for
any legal liability arising out of the transfer or use of (unless the user is
immune from liability, in which case it need only indemnify the railroad
against any potential liability), and for the payment of any and all taxes that
may be levied or assessed against, the right-of-way, as required under
49 C.F.R. § 1152.29, and has acknowledged that the use of the
right-of-way for trail purposes is subject to the user’s continuing to meet its
responsibilities described above and subject to possible future reconstruction
and reactivation of the right-of-way for rail service.In a response filed on October 4, 2011, BNSF states
that it does not object to the issuance of a NITU for the 1.37-mile rail line.

Because the City’s request complies
with the requirements of 49 C.F.R. § 1152.29, and BNSF is
willing to negotiate with the City for trail use, a NITU will be issued to the
City.The parties may negotiate an
agreement during the 180-day period prescribed below.If the parties reach a mutually acceptable
final agreement, no further Board action is necessary.If no agreement is reached within 180 days, BNSF
may fully abandon the line, subject to any outstanding conditions.See
49 C.F.R. § 1152.29(d)(1).Use of the right-of-way for trail purposes is
subject to any future use of the property for restoration of railroad
operations.

The City
also has requested the imposition of a public use condition under 49 U.S.C.
§ 10905 for the 1.37-mile line.The City
requests that BNSF be prohibited from disposing of the corridor, other than the
tracks, ties and signal equipment, except for public use on reasonable terms,
and that BNSF be barred from the removal or destruction of potential
trail-related structures, such as bridges, trestles, culverts and tunnels, for
a 180-day period from the effective date of the abandonment exemption.The City states that the 180-day period is
needed to prepare a trail plan and to negotiate with BNSF on the terms and
conditions of interim trail use.

As an
alternative to interim trail use under the Trails Act, the right-of-way may be
acquired for public use as a trail under 49 U.S.C. § 10905.SeeRail Abans.–Use
of Rights-of-Way as Trails—Supplemental Trails Act Procedures, 2 I.C.C.2d
591, 609 (1986).Under § 10905, the
Board may prohibit the disposal of rail properties that are proposed to be
abandoned and are appropriate for public purposes for a period of not more than
180 days after the effective date of the decision approving or exempting the
abandonment.

To justify a public use condition,
a party must set forth:(i) the condition sought; (ii) the public importance of the
condition; (iii) the period of time for which the condition would be effective;
and (iv) justification for the imposition of the
period of time requested.See 49
C.F.R. § 1152.28(a)(2).Because the City has satisfied these
requirements, a 180-day public use condition will be imposed, requiring BNSF to
keep intact the right-of-way (including trail-related structures such as
bridges, trestles, culverts and tunnels) and to refrain from disposing of the
corridor (other than tracks, ties, and signal equipment), commencing from the October 27,
2011 effective date of the exemption.

When the need for interim trail
use/rail banking and public use is shown, it is the Board’s policy to impose
both conditions concurrently, subject to the execution of a trail use
agreement.Here, however, while both
conditions will be imposed at this time, the public use condition will expire
on April 24, 2012, while the trail use negotiating period will run 180 days
from the service date of this decision and notice (until April 23, 2012).If a trail use agreement is reached on a
portion of the right-of-way prior to April 24, 2012, BNSF must keep the
remaining right-of-way intact for the remainder of the 180-day period to permit
public use negotiations.Also, a public
use condition is not imposed for the benefit of any one potential purchaser,
but rather to provide an opportunity for any interested person to acquire the
right-of-way that has been found suitable for public
purposes, including trail use.Therefore,
with respect to the public use condition, BNSF is not required to deal
exclusively with the City, but may engage in negotiations with other interested
persons.

This
decision and notice will not significantly affect either the quality of the
human environment or the conservation of energy resources.

It is ordered:

1.This proceeding
is reopened.

2.Upon reconsideration, the notice served and published in the Federal Register
on

September
27, 2011, exempting the abandonment of the line described above, is modified to
the extent necessary:(1) to implement
interim trail use/rail banking as set forth below to permit the City to
negotiate with BNSF for trail use for a period of 180 days from the service
date of this decision and notice (until April 23, 2012); and (2) to permit
public use negotiations as set forth below, for a period of 180 days commencing
from the October 27, 2011 effective date of the exemption (until April 24, 2012).

3.Consistent with the public use and interim trail use/rail banking
conditions imposed in this decision and notice, BNSF may discontinue service
over the line.BNSF shall keep intact
the right-of-way, including potential trail-related structures, such as
bridges, trestles, culverts and tunnels, and shall refrain from disposing of
the corridor (other than the tracks, ties, and signal equipment), for a period
of 180 days to enable any state or local government agency, or other interested
person, to negotiate the acquisition of the right-of-way for public use.If an interim trail use/rail banking
agreement is executed before expiration of the 180-day period, the public use
condition will expire to the extent the trail use/rail banking agreement covers
the same portion of the line.

4.If an interim trail use/rail banking agreement is reached, it must
require the trail user to assume, for the term of the agreement, full
responsibility for management of, for any legal liability arising out of the
transfer or use of (unless the user is immune from liability, in which case it
need only indemnify the owner against any potential liability), and for the
payment of any and all taxes that may be levied or assessed against, the
right-of-way.

5.Interim trail use/rail banking is subject to any future use of the
property for restoration of railroad operations and to the user’s continuing to
meet the financial obligations for the right-of-way.

6.If interim trail use is implemented, and
subsequently the user intends to terminate trail use, the trail user must send
the Board a copy of this decision and notice and request that it be vacated on
a specified date.

7.If an agreement for interim trail use/rail banking is reached by April 23,
2012, interim trail use may be
implemented.If no agreement is reached
by that time, BNSF may fully abandon the line, after the conditions imposed in
this proceeding are met.See
49 C.F.R. § 1152.29(d)(1).